Peter Jaworski: No warrant required for bylaw officers in Ontario

No warrant required for bylaw officers in Ontario

Loretta Newton was home alone sleeping on her couch in Cambridge, Ont., when she was awakened by several men pressing their faces against her backyard window. Startled, she jumped off her couch to get to the phone to call her husband John, dislodging a medical tube in her breast. She had recently had a breast removal surgery.

By the time John came home, the men were gone, and a nurse was re-attaching the tube.

“The blood on the floor was something I’ll never forget,” then-63-year-old John would later write in a story for The Landowner, the magazine of the Ontario Landowners Association.

When Erica Davis came home to Guelph from a funeral in another country, she discovered that her in-ground swimming pool had been damaged. Someone had gone into her backyard while she was away, cavalierly removed the tarp from her pool and drained the water below the escape vaults that keep the water circulating. The lining had dried, and the earth had started caving in.

The men who drained Erica’s pool in Guelph, contributing to its damage, were not random vandals. The men whose faces were pressed against Loretta’s window, peeking into her living room in Cambridge, were not peeping Toms and they weren’t potential thieves scoping out their next home invasion. In both cases, the culprits were city officials, on official duty, representing the cities of Guelph and Cambridge, respectively.

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In neither case did they have a warrant, and in neither case did they notify the homeowners that they would be sending representatives to traipse about their property. They didn’t have to. There is nothing illegal about municipal law enforcement officials pursuing a bylaw complaint by going into a private backyard. They can even climb over your fence and take pictures, as the city of Orillia did to Barbara Nicol when a bylaw officer took it upon himself to check if Barbara had complied with a city order.

In Ontario, municipalities may pass bylaws that permit their officers to enter onto private property without notice and without warrant at all “reasonable times.” They can do this in order to pursue an investigation stemming from a complaint, or an inspection following an order by the city.

No such similar provision exists for police officers pursuing criminal investigations. In fact, courts have strongly upheld our privacy against investigations in the criminal context.

So, if police officers cannot climb your fence, go in your backyard, or peek under your tarp to see if anything illegal is hiding under there, why can municipal law enforcement do these same things in the pursuit of bylaw infractions?

The answer is a set of incoherent and confused legal opinions dealing with section eight of the Charter of Rights and Freedoms.

Hardly anyone endorses an absolute protection of privacy. We all recognize that there may be times when the values of public safety, health and wellbeing outweigh the values secured through strict privacy protections. That’s why the courts carve out some exceptions to the rule of police having to secure a warrant — for example, the warrant requirement is waived in cases of “hot pursuit” or cases where an illegal activity is being done on private property but “in plain view” of the public.

This suggests that courts should do a balancing of the values secured through privacy and the values to be secured through an investigation or inspection, and see which way the scale tips. Such a test results in more privacy protection in bylaw cases (where the stakes of the investigation or inspection are lower) than in criminal cases. And courts do use this test — sometimes.

But on other occasions, the courts have instead balanced privacy interests against the penalties or harms of permitting violations of privacy interests. They discuss the lesser penalties and “stigmatizing effect” related to administrative as compared with criminal investigations, and they reach the perverse conclusion that criminal investigations, with their more severe consequences, require more privacy safeguards than administrative investigations.

That’s confusing. It also leaves us with no certain standards about whether, in a particular case, we can expect robust or deflated protection against municipal law enforcement. The courts should embrace the former method of balancing, and reject the latter.

The fact that I have overdue library books on the desk in my office does not entitle the university’s librarian to enter the room and take them, even if I have left my office door wide open. It is no defense of the seizure to point to the fact that the overdue book fine is negligible. Ensuring that books are promptly returned is not worth the price of privacy. The potential penalty is not relevant.

There is also terrible confusion about whether the “reasonable expectation of privacy” should focus on what we can reasonably expect given how people in fact behave (a descriptive standard), or what we ought to expect, especially from state officials, in a free and democratic society (a normative standard).

Suppose that it was customary and common for neighbours to peek in each other’s windows. If we focus on section eight as protection against unusual or unexpected invasions of privacy, it would be consistent with section eight for bylaw officers to join the neighbours in peeking in our windows. But if we change our focus to what we ought to reasonably expect in a free and democratic society, we may come to believe that even though neighbours do this as a matter of course, no officer of the state should.

The Supreme Court agreed with the latter approach, explicitly saying that the “[e]xpectation of privacy is a normative rather than a descriptive standard.”

Even the precedents that established diminished section eight protection over internal business operations — including business-related tax returns, and expenses — are best understood according to the normative, rather than descriptive, standard. The reason why business-related information sees fewer section eight protections is because, as Justice La Forest has written, business records and documents “do not normally contain information about one’s lifestyle, intimate relations or political or religious opinions. They do not, in short, deal with those aspects of individual identity which the right to privacy is intended to protect from the overbearing influence of the state.” So if something contains these “aspects of individual identity” then section eight is engaged, and the state cannot peek in your windows even if they did it in the past.

But here, as elsewhere, the court decided to sow confusion by also referencing the descriptive standard. Almost as an afterthought, the court said that regulators in the past have subjected businesses to frequent and unannounced regulatory inspections, so you can’t reasonably expect privacy.

So which is it? Does section eight protect “aspects of individual identity” from the gaze of the state, or does it protect us against new and unusual ways the state has invented for peeking through our windows?

The Court should abandon the descriptive standard entirely for one simple reason: This standard is circular. As University of Toronto law professor Lisa M. Austin puts it: “subsequent state intrusions are reasonable because you do not have much of an expectation of privacy and you do not have much of an expectation of privacy because of the existence of previous state intrusions.”

While internal business operations may not include such aspects of our individual identity, our backyards and living rooms clearly do. These aspects take the form of campaign posters on walls or signs stored in our sheds; religious books and icons on our bookshelves; backyard ornaments; or prescription medicines left on our living room table visible from backyard-facing windows. We all have legitimate reasons to sometimes keep that information private.

Our backyards and living rooms should be private sanctuaries. And access to these private sanctuaries should not come as easily as an anonymous complaint from a neighbour or an angry ex seeking to make life difficult. It should come only at the price of our consent or, failing that, a warrant.

That is not, unfortunately, how the Ontario Court of Appeal saw things in Erica Davis’s case. Justice R.A. Blair highlighted the circular descriptive account of section eight in his judgment, thereby bolstering this mistaken interpretation. In finding against Erica, Blair did not look at a possible violation of section eight, and ruled only on the reasonableness of the city’s actions under the enabling statute. That still leaves open the possibility of challenging the reasonableness of the statute itself under section eight.

Blair’s mistake was based on an earlier Court of Appeal precedent in Barbara Nicol’s case. There, the court erred in two ways with respect to section eight. First, they struck the balance by focusing on the consequences to Barbara of an investigation rather than on the value of the goals of the investigation: “There is not the same stigma involved and the penalty attached to regulatory searches is less,” they wrote. And, second, in saying that “[p]eople in today’s society are accustomed to regulation,” they invoked the circular reasoning that animates the descriptive account of section eight.

The Supreme Court declined an opportunity to fix these mistakes when, in May of this year, it dismissed Erica’s appeal. None of the three women — Erica, Barbara and Loretta — found protection under section eight. Erica discovered that bylaw officers could traipse into her backyard and start messing with her swimming pool. Barbara discovered that bylaw officers are permitted to hop fences and ignore “No Trespassing” signs. And Loretta discovered that bylaw officers in Canada do not always shy away from peeking through windows.

To add insult to the injury done to our privacy, these powers of entry are entirely unnecessary. The provinces of Alberta, Manitoba and Saskatchewan all require that bylaw officers give reasonable notice before showing up on private property. They must then seek a warrant if the property owner does not give permission for them to take a look about. All three Territories have the same requirements.

Only British Columbia, Quebec and Ontario give municipalities the extraordinary power to barge onto private property without notice nor warrant for purposes of an investigation stemming from an anonymous complaint — or randomly and at any officer’s discretion for purposes of an inspection to see if an order is being complied with.

A warrant requirement would cut down on cities and grouchy neighbours using bylaw officers as their personal, private bullying services. An independent body that ensures there are good reasons for pursuing an investigation or inspection would cut down on the pursuit of malicious or vexatious complaints, and would give us back some of our lost privacy.

These things might have been enough to keep Loretta and John Newton in Canada.

“We have started giving away our belongings,” Loretta’s husband John explained to Marlene Black, editor of The Landowner, in an email on April 20, 2011, “and hope to be on a plane out of Canada the day our first [pension] cheque arrives.” They’ve since left, freeing themselves from the unwanted intrusions of a city they once called home.

C2C Journal

Peter Jaworski is a senior fellow with the Canadian Constitution Foundation.